Many Supreme Court cases are a sequel. Tyson Foods v. Bouaphakeo is a sequel to the significant and controversial case, Wal-Mart v. Dukes (2011), where the Court refused to allow 1.5 million sex discrimination plaintiffs to sue retail giant Wal-Mart as a class.

In Tyson Foods v. Bouaphakeoa jury concluded that pork processing employees should have been compensated per the Fair Labor Standards Act (FLSA) for donning and doffing varying protective equipment, but Tyson Foods failed to keep records of the time they spent doing it. The Supreme Court held 6-2 that the employees could bring a collective (class) action lawsuit using “representative evidence” put together by an industrial relations expert averaging donning and doffing time by position based on 744 videotaped observations.

While some jobs and industries are more vulnerable to FLSA overtime collective actions or other class action lawsuits, state and local government are not spared.

To bring a class action “questions of law or fact common to class members [must] predominate over any questions affecting only individual members.”

If each class member could have relied on a representative sample to establish liability in an individual lawsuit that sample may be relied on to prove class wide liability. This is the reason, Justice Kennedy opined, that the use of a representative sample is acceptable here: “[i]n this suit [the employees] sought to introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records. If the employees had proceeded with 3,344 individual lawsuits, each employee likely would have had to introduce [the] study to prove the hours he or she worked. Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing.”

The Court distinguished this case from Wal-Mart v. Dukes where the Supreme Court failed to certify a class of sex discrimination plaintiffs because they failed to identify a common policy of discrimination at Wal-Mart. None of the women in that case “could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers.” In contract, the studies in this case “could have been sufficient to sustain a jury finding as to hours worked if it were introduced in each employee’s individual action.”

The jury in this case awarded a verdict of less than half of what the employees asked for based on the time studies, indicating that the jury thought the time studies were inaccurate. Employees would only be eligible for damages if the hours they were compensate for plus uncompensated donning and doffing time exceeded 40 per week. Not all employees in the class would have worked 40 hours a week total if donning and doffing is less than what the time studies indicated.  

The Court stated that while the question of whether uninjured class members may receive damages is one of “great importance,” it is not fairly presented in this case because the damages award has not yet been disbursed.